NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports. Readers are
requested to notify the Clerk/Reporter, Supreme Court of New Hampshire, Supreme Court
Building, Concord, New Hampshire 03301, of any errors in order that corrections may be
made before the opinion goes to press. Opinions are available on the Internet by 9:00 a.m.
on the morning of their release. The direct address of the court's home page is:
http://www.state.nh.us/courts/supreme.htm

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 97-682

NANCY AND CHARLES HACKING, JR.,

AS PARENTS AND NEXT FRIENDS OF CHELSEA HACKING

v.

TOWN OF BELMONT &a.

May 14, 1999

Nixon, Raiche, Manning & Casinghino, P.A., of Manchester (Gary
L. Casinghino on the brief and orally), for the plaintiffs.

BROCK, C.J. This is an interlocutory appeal, seeSup. Ct. R.
8, by the defendants, the Town of Belmont and the Shaker Regional School District, from a
ruling of the Superior Court (Arnold, J.) denying their motion to dismiss. The
plaintiffs, Nancy and Charles Hacking, Jr., have asserted several theories of negligence
against the defendants for injuries that their daughter, Chelsea Hacking, sustained in a
basketball game. We affirm in part, reverse in part, and remand.

The plaintiffs have alleged the following facts. On or about January 27,
1995, when she was a sixth grade student at the Canterbury Elementary School, Chelsea
participated in a girls basketball game against a team from the Belmont Elementary School.
During that game, which was organized by the defendants and/or the Town of Canterbury, the
referees, coaches, instructors, and employees of the defendants permitted the game to
escalate out of control. Belmont players twice knocked Chelsea down and stepped on her
leg. As a result, she suffered permanent injury to her left leg, underwent surgery and
other medical treatment, and will require future medical care.

The plaintiffs brought an action against the defendants alleging several
theories of negligence. In the first count of their writ, they alleged that the defendants
breached a duty to exercise reasonable care and supervision of the game, to ensure that
the game was kept under reasonable control, and to prevent the game from escalating out of
control (Count I). In the second count, they alleged under a theory of respondeatsuperior
that the defendants' employees, coaches, instructors, and referees breached a duty to
supervise and control the game properly and to ensure that the participants played in a
safe manner (Count II). In the third count, they alleged that the defendants failed to
train and supervise properly their employees, coaches, instructors, and referees to
conduct the game (Count III).

The defendants moved to dismiss for failure to state a claim upon which
relief may be granted, arguing that the doctrines of discretionary function immunity and
assumption of the risk warranted dismissal of the plaintiffs' claims. The defendants
argued that their decisions concerning the organization of the game, such as who to select
as coaches and referees and how much training to provide them, were discretionary and
entitled to immunity. Likewise, they argued that the referees' decisions regarding the
appropriate calls to make during the game were discretionary. The defendants further
argued that Chelsea voluntarily assumed the risk of accidental injury that is inherent in
the game of basketball.

The trial court denied the motion to dismiss. The court noted that to the
extent the plaintiffs' writ refers to the defendants' discretionary decisions in planning
and setting policy regarding school sports, the defendants are entitled to immunity.
Reading the allegations in the light most favorable to the plaintiffs, however, the court
concluded that the claims refer not to basic policy decisions, but to ministerial conduct.
The court also ruled that the doctrine of assumption of the risk did not, as a matter of
law, bar the plaintiffs' claims.

The defendants moved to reconsider, reasserting their immunity arguments.
In addition, they argued that the referees and coaches, who they asserted were volunteers,
were themselves immune from liability by statute. See RSA 508:17, I (1997) (amended
1998). Because the coaches and referees were immune from liability, they argued, no
liability could be imputed to the defendants under a respondeatsuperior
theory. The court denied their motion for reconsideration, and this interlocutory appeal
ensued.

On appeal the defendants contend that the trial court erred in: (1) ruling
that the defendants are not entitled to discretionary function immunity for their
decisions regarding the selection, training, and supervision of the coaches and referees
who participated in the game, and for the decisions made by the coaches and referees
during the game; (2) denying the motion to dismiss on the grounds that the plaintiffs'
claims are not barred by assumption of the risk; and (3) failing to address the
defendants' assertion that the plaintiffs' claim of respondeatsuperior
liability must fail.

In reviewing an order on a motion to dismiss for failure to state a claim
upon which relief may be granted, "we ask whether the plaintiff[s'] allegations are
reasonably susceptible of a construction that would permit recovery." Konefal v.
Hollis/Brookline Coop. School Dist., 143 N.H. ___, ___, 723 A.2d 30, 32 (1998)
(quotation omitted). "We assume the truth of the plaintiff[s'] well pleaded
allegations of fact and construe all reasonable inferences from them most favorably to the
plaintiff[s]." Hickingbotham v. Burke, 140 N.H. 28, 30, 662 A.2d 297, 299
(1995) (quotation and ellipsis omitted).

I. Discretionary Function Immunity

The defendants' first allegation of error requires us to review once again
the doctrine of discretionary function immunity. In Merrill v. Manchester, 114 N.H.
722, 729, 332 A.2d 378, 383 (1974), we abrogated the doctrine of municipal immunity. In so
doing, we established that as a general rule, municipalities are "subject to the same
rules as private corporations if a duty has been violated and a tort committed." Id.
at 730, 332 A.2d at 383.

As an exception to the general rule, however, we held that municipalities
are immune from liability for acts and omissions that constitute "the exercise of an
executive or planning function involving the making of a basic policy decision which is
characterized by the exercise of a high degree of official judgment or discretion." Id.
at 729, 332 A.2d at 383. We have recognized that "[c]ertain essential, fundamental
activities of government must remain immune from tort liability so that our government can
govern." Mahan v. N.H. Dep't of Admin. Services, 141 N.H. 747, 750, 693 A.2d
79, 82 (1997) (quotation and brackets omitted) (decided under the discretionary function
exception to the State's waiver of sovereign immunity). Accordingly, in evaluating whether
the trial court erred, we must "distinguish between planning or discretionary
functions and functions that are purely ministerial." Bergeron v. City of
Manchester, 140 N.H. 417, 421, 666 A.2d 982, 984 (1995).

We have refused to adopt a bright line rule to determine whether conduct
constitutes discretionary planning or merely the ministerial implementation of a plan. Seeid. at 421, 666 A.2d at 985; Gardner v. City of Concord, 137 N.H. 253, 258,
624 A.2d 1337, 1340 (1993). We have, however, adopted the following test:

When the particular conduct which caused the injury is one characterized
by the high degree of discretion and judgment involved in weighing alternatives and making
choices with respect to public policy and planning, governmental entities should remain
immune from liability.

To the extent that the plaintiffs challenge the defendants' decisions
regarding the training and supervision of the coaches and referees, the defendants are
immune from liability. There is no question that the decision whether or not to have a
fifth and sixth grade girls basketball program is characterized by a high degree of
discretion in making public policy and planning choices. SeeBergeron, 140
N.H. at 421, 666 A.2d at 984 (quotation omitted); cf. DiFruscia v. N.H. Dept. of
Pub. Works & Highways, 136 N.H. 202, 205, 612 A.2d 1326, 1328 (1992) (decided
under the discretionary function exception to the State's waiver of sovereign immunity)
(decision whether or not to place a guardrail on a highway is discretionary). Likewise,
the decisions regarding what training and supervision to provide those whom the defendants
chose to run the program are planning decisions requiring a high degree of discretion. Cf.
Bergeron, 140 N.H. at 425, 666 A.2d at 987 (because ultimate decision regarding
traffic controls at intersection was discretionary, intermediate decision regarding
whether to have staff keep track of accidents at intersection also discretionary). These
decisions necessarily involve the most prudent allocation of municipal resources, and thus
the weighing of "competing economic, social, and political factors." Mahan,
141 N.H. at 750, 693 A.2d at 82; cf. Phillips v. Thomas, 555 So. 2d 81, 85
(Ala. 1989) (defendant entitled to discretionary function immunity for negligent training
and supervision claim); Brooks v. Logan, 903 P.2d 73, 77 (Idaho 1995) (school
district entitled to discretionary function immunity for failure to train staff to prevent
student suicide); Erskine v. Commissioner of Corrections, 682 A.2d 681, 686 (Me.
1996) (defendants' actions in training and supervising personnel protected by
discretionary immunity); Miller v. Szelenyi, 546 A.2d 1013, 1021 (Me. 1988) (proper
supervision and control of employees required exercise of discretion). Accordingly, the
trial court should have dismissed Count III, and we reverse its decision with respect to
that count.

Although the plaintiffs acknowledge that the issue of training might
involve some degree of a policy judgment, they assert that a reasonable jury could
conclude that the defendants negligently entrusted the safety and care of students to
improperly trained referees and coaches. Thus, they argue that if we construe the
allegations most favorably to them, Count III should be allowed to stand. This argument
misses the mark. The plaintiffs have alleged conduct in Count III that constitutes
inherently discretionary policy judgments, and is entitled to immunity.

The defendants assert that they are entitled to immunity for their
decisions regarding not only the training and supervision of the coaches and referees, but
also the selection of the coaches and referees. In arguing that the trial court
erred on this issue, the defendants state that the plaintiffs' claim for negligent
training and supervision should have been dismissed in part because the decision to rely
on parent volunteers as referees and coaches was discretionary. Count III, however,
alleges only that the defendants "failed to properly train and supervise" the
referees and coaches. Moreover, plaintiffs' counsel conceded at oral argument that they
had not alleged negligent selection of referees and coaches. Accordingly, we find it
unnecessary to address whether the selection of the referees or coaches was entitled to
immunity.

The defendants next argue that the decisions made by the referees and
coaches in the course of the game were entitled to discretionary function immunity.
Decisions such as whether to call a foul, whether to replace one player with another, or
whether a team has scored, according to the defendants, are inherently discretionary and
require the weighing of alternatives. The defendants contend that discretionary function
immunity should extend not only to "high-level" decisions, but to decisions made
at any level when those decisions "involve the weighing of alternatives regarding the
implementation or allocation of municipal resources." Accordingly, the defendants
argue that the decisions of the referees and coaches are precisely the sort of decisions
that ought to be afforded immunity. The only conduct that should be considered
ministerial, according to the defendants, is conduct that involves the mere execution of a
set task, requiring no independent judgment.

Although the level of government at which a decision is made is not
dispositive of whether the municipality is entitled to immunity, seeGardner,
137 N.H. at 258, 624 A.2d at 1340, ministerial conduct is not limited to conduct requiring
no judgment whatsoever. Indeed, "it would be difficult to conceive of any official
act, no matter how directly ministerial, that did not admit of some discretion in the
manner of its performance, even if it involved only the driving of a nail." 18 E.
McQuillin, Municipal Corporations § 53.04.10, at 157 (3d ed. rev. 1993) (quotation
and brackets omitted); seealsoWhitney v. City of Worcester, 366
N.E.2d 1210, 1217 (Mass. 1977) (distinction is not merely between discretionary and
non-discretionary functions as all functions involve some degree of judgment). While
"[n]ot all governmental decisions involving an element of discretion fall within the
discretionary function exception," the exception does apply "when a decision
entails governmental planning or policy formulation, involving the evaluation of economic,
social, and political considerations." Mahan, 141 N.H. at 751, 693 A.2d at 83.

Assuming the truth of the plaintiffs' allegations, we conclude that the
decisions of the referees and coaches, while perhaps involving some discretion and
judgment, were not decisions that concerned municipal planning and public policy. SeeBergeron, 140 N.H. at 421, 666 A.2d at 984. These decisions did not involve the
weighing of competing social, economic, or political factors. SeeMahan, 141
N.H. at 751, 693 A.2d at 83; cf. Ransom v. City of Garden City, 743 P.2d 70,
73 (Idaho 1987); Adriance v. Town of Standish, 687 A.2d 238, 241 (Me. 1996).
Rather, the plaintiffs have alleged negligence on the part of the referees and coaches in
the implementation of the school basketball program.

The discretionary function exception "was not designed to cloak the
ancient doctrine of [municipal] immunity in modern garb." Adriance, 687 A.2d
at 241 (quotation omitted). Elevating the decisions of referees and coaches in the course
of an elementary school basketball game to the level of governmental planning or policy
formulation would indeed undermine the rule of Merrill establishing immunity as the
exception. Accordingly, we hold that the trial court did not err in denying the motion to
dismiss on the grounds that the decisions of the referees and coaches were not entitled to
discretionary function immunity.

The defendants contend, however, that public policy considerations
militate against imposing liability for the negligence of public school officials who
administer school-sponsored athletic events. Although the plaintiffs do not include the
referees and coaches as defendants in this case, the defendants assert that permitting
such liability could discourage individuals from volunteering in these events. The
legislature, however, has provided a method by which volunteers of governmental entities
may obtain immunity from ordinary negligence. RSA 508:17, I. Thus, the defendants'
concerns are largely academic. Moreover, these concerns must be weighed against our
determination in Merrill that forcing an individual to bear the loss caused by the
negligence of a municipal employee "offends the basic principles of equality of
burdens and of elementary justice." Merrill, 114 N.H. at 724, 332 A.2d at 380.
Accordingly, we decline to create an additional exception to Merrill for public
school-sponsored sporting events.

II. Assumption of the Risk

We next address the defendants' contention that the plaintiffs' claims are
barred by assumption of the risk. In New Hampshire, "participants in . . . sports
[other than sports in which the legislature has explicitly so provided] do not assume, as
a matter of law, the dangers inherent in those sports." Nutbrown v. Mount Cranmore,
140 N.H. 675, 682, 671 A.2d 548, 552 (1996). The defendants do not dispute that
"[t]he doctrine of primary assumption of the risk, as a common law defense, has been
rejected by this court." Id. at 681, 671 A.2d at 551. Rather, they argue that
we ought to revive the doctrine in the limited instance of public school-sponsored
activities. Because New Hampshire public schools face increasing liability for their
extracurricular programs, the defendants argue that they should be afforded an exception.
Otherwise, public schools will abandon such programs.

Even if we were to create such an exception, however, it is settled law
that "a plaintiff does not assume a risk of harm arising from the defendant's conduct
unless he then knows of the existence of the risk and appreciates its unreasonable
character." Restatement (Second) of Torts § 496D (1965). While one
participating in a sport might "consent[] to those commonly appreciated risks which
are inherent in and arise out of the nature of the sport generally and flow from such
participation," Morgan v. State, 685 N.E.2d 202, 207 (N.Y. 1997), one does not
ordinarily assume an "unreasonably increased or concealed" risk, Benitez v.
New York City Bd. of Educ., 541 N.E.2d 29, 33 (N.Y. 1989) (quotation omitted). The
plaintiffs have alleged in this case that the referees lost control of the game. Assuming
the truth of this allegation, and drawing all reasonable inferences in their favor, we
cannot say as a matter of law that this was an ordinary risk inherent within the game of
basketball that Chelsea or her parents would have known and appreciated. Cf. Morgan,
685 N.E.2d at 210. Accordingly, we affirm the trial court's denial of the motion to
dismiss on this ground.

III. Respondeat Superior

Finally, we address the defendants' argument that because the referees and
coaches are immune under RSA 508:17, I, their immunity must be imputed to the defendants
under respondeatsuperior, the trial court erred in failing to address this
argument, and Count II should have been dismissed. RSA 508:17, I, provides:

Any volunteer of a nonprofit organization or government entity shall be
immune from civil liability in any action brought on the basis of any act or omission
resulting in damage or injury to any person if:

(a) The volunteer had prior written approval from the organization to act
on behalf of the organization; and

(b) The volunteer was acting in good faith and within the scope of his
official functions and duties with the organization; and

(c) The damage or injury was not caused by willful, wanton, or grossly
negligent misconduct by the volunteer.

"Volunteer" under this statute is defined as

an individual performing services for a nonprofit organization or
government entity who does not receive compensation, other than reimbursement for expenses
actually incurred for such services. In the case of volunteer athletic coaches or
sports officials, such volunteers shall possess proper certification or validation of
competence in the rules, procedures, practices, and programs of the athletic activity.

RSA 508:17, V(c) (1997) (emphasis added).

It is not apparent from the record whether the "employees, coaches,
instructors, and referees" that the plaintiffs charge with negligence under Count II
meet the definition of "volunteer" under the statute, and the parties have not
stipulated that these individuals would be immune if sued personally. Thus, "it was
incumbent upon [the defendants as] the moving part[ies] . . . to supply the court with
facts verified by affidavit to support its motion to dismiss." Gardner, 137
N.H. at 259, 624 A.2d at 1341; seeSuper. Ct. R. 57 (superior court will not
hear motion grounded on facts unless the facts are apparent from the record, agreed to by
the parties, or verified by affidavit). As the defendants have provided no affidavits
submitted below establishing the facts necessary to find that the "employees,
coaches, instructors, and referees" in Count II would be immune under RSA 508:17, we
cannot conclude that the trial court erred in failing to address that argument.